HOA - Election - BOD members cannot politick with HOA funds through management

Started by DavidS63 • 15 replies • 3502 views

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DavidS63 (Florida)
Posts: 13

Posted:

Hi All,

I saw two interesting articles which state that incumbent BOD members cannot politick through the management company with HOA funds nor send out letters which look like they are being sent from the Association (ex. from the management company). Such politicking must be mailed out from the individual BOD member. It also states that HOA election letters should not disparage other candidates and only state facts. Those two articles were:

http://blogs.sun-sentinel.com/condoblog/2012/03/the-bully-pulpit-of-sitting-boards-during-elections-can-violate-state-law.html

and

http://www.hoaleader.com/public/423.cfm

I realize this is wrong, but what Florida Statute or FL case law supports these statements? I would greatly appreciate anyone's help to find the Florida law on this matter.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

From one of the articles:

Is it proper or legal for a sitting Board member or property management company to endorse or slam current board members in the second mailings or follow-up letters to owners.”

The answer to this question is a resounding “NO” – it is neither proper nor legal. Both condo and HOA law prohibit board members and property management from endorsing or condemning any candidates in the official election materials or using association funds. That does not preclude board members from using their own funds to send out such mailings.

While I agree with the above and we have seen examples of it posted here plus some actions that could be seen as similiar such as ballot/proxy written to "control" an election. The question is, what could one do about it short of legal action?

Often being right does not mean one can nor wants to anything about it.

PeterD3 (Florida)
Posts: 708

Posted:

It MAY be inferred here:

720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.— (contains the following chapter)

(12) COMPENSATION PROHIBITED.—A director, officer, or committee member of the association may not directly receive any salary or compensation from the association for the performance of duties as a director, officer, or committee member and may not in any other way benefit financially from service to the association.

I would argue any cost(s) associated with an idividual(s) re-election campaign NOT BORNE BY THE CANDIDATE is a 'financial benefit' to the individual(s).

DavidS63 (Florida)
Posts: 13

Posted:

Great statute, but what if the BOD (as a whole) believes that the slamming is in the interest of the community. What prohibits an association / BOD from sending out slamming letters / e-mails whether it benefits a few of the BOD members or not. If it is Board agreed decision, what law would prohibit the Board from making a decision which they believe is in the interest of the community to slam a new candidate (or attempt to ensure a new candidate does not get elected)?

JonD1
Posts: 2,350

Posted:

Thankfully this is a law passed in Fla. and we here in NY need not consider it.

Like in many situations, the intent might have been good but the practical application might be more trouble than it's worth.

We had a situation where one of the crazies here filed a suit against the property. Then they decided to seek a position on the Board. In our case we did in fact send out numerous new letters giving the owners, both those who lived here and those who lived off the property, the details we felt they needed to know. As a result when the votes were counted they got 3 out of more than 100. So you just might be tying the hands of the Board members in such cases whether you intended to our not.

And by the way they lost their suit too............ Alls well that ends well.

The Board should IMO be able to address situations that affect the entire property such as elections IF that ability is then abused rather than blaming the system I would place blame on that Board itself and its members.

DavidS63 (Florida)
Posts: 13

Posted:

I would love to know what law it was which was passed in Florida. Hopefully someone on this forum can bring my attention to it.

Thank you!

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By DavidS63 on 02/02/2013 2:48 PM
I would love to know what law it was which was passed in Florida. Hopefully someone on this forum can bring my attention to it.

Thank you!

From the comments that follow the first article, it appears that the writer was refering to FL 718.111.

It appears that the statute allows the board to collect addresses, phone numbers, and email addresses of owners and not share that information with other owners. The concern is that board members will have the means to contact owners while non-board members will not. This gives a major edge to incumbent directors during elections.

The second article discusses different, but unindentified, statutes also involving HOA elections.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By DavidS63 on 02/02/2013 2:21 PM
If it is Board agreed decision, what law would prohibit the Board from making a decision which they believe is in the interest of the community to slam a new candidate (or attempt to ensure a new candidate does not get elected)?

Laws do not prohibit someone from making the decision to break them.
An individual's character and perhaps consequences for breaking the law may prevent them from making that decision.

There are civil laws and criminal laws. Criminal laws are enforced by the State. Civil laws are usually enforced by the individuals involved and they do this by agreement, mediation or through the court system. Since contracts, hoa/coa laws and corporate laws are considered civil laws, there is typically limited governmental authorities to "oversee" or enforce those laws.

Sure the State corporation commission may fine for not filing the annual report on time. The IRS will certainly go after the Association for failing to file taxes. The District Attorney will prosecute if criminal laws are broken (example embezzlement). However if the Association doesn't comply with the Bylaws or a civil law, it's up to the membership to hold the Board accountable. The easiest way would be to recall the board or not reelect them to the Board. The more expensive option is to go through the court system.

As John pointed out, if you chose to take the individuals to court what would be the result? I can think of the following:

1) The court rules the Board did nothing wrong.
2) The court rules the Board made a bad decision but and says not to do it again.
3) The court rules the Board made a bad decision and says to repay the funds.

As you can see, all of the court rulings wouldn't change the issue of you being bad mouthed. It would of course cost you and the Association time, money and energy to - at best- have the funds repaid. Sort of like spending $1,000 to recoup $200.

My advice, Do more mailings and more personal visits to inform the membership.

Hope this helps.

OH, thank you for caring enough to become involved in the running of your Association.

Tim

PeterD3 (Florida)
Posts: 708

Posted:

Quote:

Posted By DavidS63 on 02/02/2013 2:48 PM
I would love to know what law it was which was passed in Florida. Hopefully someone on this forum can bring my attention to it.

Thank you!

David if you expect to find a 'law' to address every possible specific scenario then you will be disappointed.

Slander and libel laws protect all individuals within and without HOAs and have their own burden of proof.

If the [slamming] information published has no merit or fact then that is the avenue an individual must venture down.

If the community (50% +1) feels their money is being spent frivolously then there are other 'laws' to remedy that situation (recall).

Good luck to you and I suggest you seek real legal advice in your pursuit of satisfaction and justice.

TimB4 (Tennessee)
Posts: 21,059

Posted:

David,

Using the links in within the story you referenced, I came to the original source from Linkedin. Per the linkedin discussion an individual identified as Angela P, references Condominiums - Chapters 61B-15 through 25, 45 and 50, Florida Administrative Code (link is a pdf document).

Angela says to scroll down to page 49 where you will find the following [emphasis added]:

(8) In accordance with the requirements of Section 718.112(2)(d), Florida Statutes, the
association shall mail or deliver to the eligible voters at the addresses listed in the official records a second notice of the election, together with a ballot and any information sheets timely submitted by the candidates. The association shall mail or deliver the second notice no less than 14 days and no more than 34 days prior to the election. The second notice and accompanying documents shall not contain any communication by the board that endorses, disapproves, or otherwise comments
on any candidate. . . .

In case the linkedin link doesn't work right, here is the entirety of Angela's remarks:

Angela P. • FL - Ken - The information that you are looking for is located in the Florida Administrative Code 61B-23.0021 which discusses the procedural requirements for elections. The Administrative Code appears to emphasize condominium associations (FS718); however, a review of FS720 references that elections need to be very procedurally similar to those followed pursuant to FS718 (differences are noted in the Statute itself).

You will be particularly interested in page 49 of that lengthy document - Section 61B-23.0021 (4) - (10). Second notices are discussed in depth in section (8) which is on page 49. For your convenience, here's the link to the entire document:

http://www.myfloridalicense.com/dbpr/lsc/LSCMHCondominiumLaws.html

The document discusses that board members and management are prohibited from endorsing or condemning any candidate(s) in the official election materials which are supposed to follow the State guidelines. If, however, someone - board or otherwise - wishes to endorse or condemn anyone, they will need to do so 'on their own nickel' in a completely separate mailing paid by themselves and not with association funds or assistance. (That's my understanding and that's the way I've seen some do it.)

Regards,
A

CarolR11 (Colorado)
Posts: 2,563

Posted:

Tim wrote:"The document discusses that board members and management are prohibited from endorsing or condemning any candidate(s) in the official election materials which are supposed to follow the State guidelines. If, however, someone - board or otherwise - wishes to endorse or condemn anyone, they will need to do so 'on their own nickel' in a completely separate mailing paid by themselves and not with association funds or assistance."

These are the same as ours in CA. In our HOA, David, three directors who weren't up for-re-election (one was going off the board) did indeed spend their own nickel to send letters to all Homeowners viciously "slamming" two who sought election. In their mistake-filled, sloppy letter, they also slammed two of us two who'd served one of our two-year terms. The three nasty -letter writers definitely thought they were doing what was best for our HOA. The two candidates whom they supported in their letter lost by huge margins to "our" two. The latter sent a wise, hyperbole-free and reasonable letter to owners (with the help of some of us others). "We" won! Finally our HOA began making wonderful progress!

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By CarolR11 on 02/02/2013 6:09 PM

Tim wrote:"The document ...

Actually, to give credit where credit is due, those were Angela's words.

DavidS63 (Florida)
Posts: 13

Posted:

Hi Tim,

That's EXACTLY what I am looking for! This is not about suing or punishing. One cannot change a Board (even BOD who considers themselves reasonable) unless one brings their attention directly to the law on point. Only then can a BOD policy regarding elections be potentially passed which may prevent this behavior in the future.

Thank you so very much!!!! I think this will be quite helpful. I wonder if there is also a DBPR administrative case result which interpreted this FL Administrative code exactly like the articles did. If you know of any case law on this, please let me know. Otherwise, Thank you so very much!!

Hopefully others in FL who read this will attempt to pass a HOA / Condo Board election policy which includes a prohibition of politicking through the Association's funds & Association's management company.

TimB4 (Tennessee)
Posts: 21,059

Posted:

David,

No problem. Your the one who linked the initial story in the Sentinial.
That article had the active links to the original source.
The original source had the active link to the law.

It was just a few mouse clicks to locate it.

DavidS63 (Florida)
Posts: 13

Posted:

Ahh.. didn't see that. Thank you! : ) If you find any DBPR (or FL state) case law on this, please feel free to post it. I'll check too.

DavidS63 (Florida)
Posts: 13

Posted:

Found an interesting DBPR case on this very issue:

http://www.myfloridalicense.com/dbpr/lsc/arbitration/allorders/2003050146.pdf

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